Course:Legal Constraints on Digital Creativity/Course Notes/07. Regulation
INDUSTRY & MEDIUM REGULATION
THE EVOLUTION OF CONTENT/CARRIAGE REGIMES & THE POLICY RESPONSES TO THEM
At this point in the discussion it may be helpful to take a brief look backwards at the underlying rationales that applied to previous content/carriage revolutions. Understanding them will help us understand that there is no shame and considerable precedent for crafting new policy directions when faced with fundamentally disruptive technological advancements. We need to learn from but not be too enamored with the past. To put it crudely, pouring old wine into new bottles won’t make it taste any better.
So what were the policy responses in the past?
First Origins – The Printing Press.
A markedly “paternalistic” statutory regime in England created Boards to regulate and license those who operated printing presses. The root concern appeared to be that presses could fall into the “wrong hands” with resulting social unrest among the lower classes. For a fuller exposition, see John Milton’s “Areopagitica” which was in a speech to the British Parliament against this regulatory regime.
- “If we think to regulate printing, thereby to rectify manners, we must regulate all recreations and pastimes, all that is delightful to man. No music must be heard, no song be set or sung, but what is grave and Doric. There must be licensing of dancers, that no gesture, motion, or deportment be taught our youth, but what by their allowance shall be thought honest; for such Plato was provided of. It will ask more than the work of twenty licensers to examine all the lutes, the violins, and the guitars in every house; they must not be suffered to prattle as they do, but must be licensed what they may say. And who shall silence all the airs and madrigals that whisper softness in chambers? The windows also, and the balconies, must be thought on; there are shrewd books, with dangerous frontispieces, set to sale: who shall prohibit them, shall twenty licensers?”
- John Milton, Areopagitica – 1644
The Radio Phase.
This regime was “nationalistic” in origin. In Canada the Aird Commission Report of 1932 is an illustration of this {also cited above in I. RATIONALES FOR CENSORSHIP & CONSTRAINT, 4. Cultural Nationalism}.
- ”This country must be assured of complete Canadian control of broadcasting from Canadian sources, free from foreign interference or influence. Without such control radio broadcasting can never become a great agency for the communications of matters of national concern and for the diffusion of national thought and ideals, and without such control it can never be the agency by which national consciousness may be fostered and sustained and national unity still further strengthened.”
- Prime Minister R.B Bennett – 1932 – introducing the legislation that created public broadcasting.
The Television Phase.
As TV evolved so did the rationale for its regulation, which can be seen as “culturalistic” (sic). In Canada, the 1986 Caplan-Sauvageau Report on Broadcasting Policy allows one to count the ways.
For example at page 17 of their Report, Caplan-Sauvageau cited with approval the following quote from the 1978 Clyne Committee: “We conclude our work…..with an exhortation: with all the force at our command, we urge the Government of Canada to take immediate action to alert the people of Canada to the perilous position of their collective sovereignty that has resulted from the new technologies of telecommunications and informatics; and we urge the Government of Canada and the governments of the provinces to take immediate action to establish a rational structure for telecommunications in Canada as a defense against the further loss of sovereignty in all its economic, social, cultural and political aspects.” Then at page 41, the Report itself stated: “Our first priority is to make the broadcasting system serve Canadian culture, broadly defined, more effectively in the future than it has done in the past.”
From the 1970’s through to the end of the 1980’s, television was ever-increasingly required to be an instrument of, and the main support for a regulatory vision that had a cultural vision of Canadian content as its apotheosis. This belief system was based on control of the launch of linear channels through mechanisms such as ownership limits and spectrum control. The catch from our current time frame is that those mechanisms are not holding up particularly well.
The Cable Phase.
Cable and other methods of signal carriage came to the fore as notions of free trade became popular internationally and slowly began being implemented in our hemisphere. Our policy Canadian framework become progressively more “industrialistic” (sic) as a result, not least because of concerns regarding the long term viability (and advisability) of the so called “Cultural Exemption” to our Free Trade agreements with the U.S. and Mexico. The role of competition and the free market were stressed, all the while trying not to lose sight of both order and balance. The rhetoric behind this policy direction can be found in and around the work done in the mid-1990’s by the Information Highway Advisory Council (“IHAC”).
The policy framework was that we could control the discrete elements of distribution, content packaging, and content creation. The latter would be subject to distribution incentives, price supports, and financing in the form of funds, grants, and tax credits. An underlying unstated assumption was that a discrete Canadian market could be maintained for foreign rights. This started to erode with the introduction of foreign channels such as RAI. Of course digital media are presently smashing this assumption to smithereens.
It can be observed from the above as a general principle that where a new policy rationale has come into existence for a new technology, that rationale would eventually be applied equally to the preceding technologies. Usually not entirely comfortably or appropriately, but that is a story for another day.
The question begged: WHAT SHOULD “THE DIGITAL PHASE” REGIME HAVE AS ITS CORNERSTONE REGULATORY PRINCIPLES?
We now arrive armed with historical context to consider how digital content and distribution ought to be dealt with. Perhaps an appropriate threshold question would be “What is needed for Canadian digital content to be successful in the current digital world?”
The hallmarks of this new world are apparently very low barriers to entry when it comes to both creation and distribution of content, seemingly no barriers to distribution, and a pervasive internationalism. Of course each of these statements is misleading in its own way. Most great content is expensive to produce. There are still barriers to distribution. Consumer interest starts from a local grounding since much content does not travel very well. The other stark reality is that Canada starts from its notorious small domestic base but now it is massively fragmented. Financing content is as important as it ever was.
Based on the above, the answer is probably fairly clear – our digital age public policy, if it is to support Canadian endeavors and content, will need to be fundamentally based on what results in the most compelling creative product. That is because in the content playing field that has emerged, it is only compelling content (broadly defined) that seems to be successful in attracting a substantial following. What is equal parts fascinating and frightening is that of the myriad factors which Canadian policies have considered when looking at content, it’s hard to argue that the creative freedoms which are the sine qua non of compelling content have in truth ranked all that highly.
Instead our policy focus has been on subjects such as diversity, access, terms of trade, and creating shelf space on linear platforms. The response to digital change is to attempt to adapt the rules that sort of worked in the 1980’s to the digital environments of 2015. This is can buttressed by buckets of cash for the allegedly destitute. The notion of “independence” still trumps success in the policy and cultural drawing rooms of this country. We are mired in the old-wine in new bottles trap. Actually digital media represents a new kind of drink and a new kind of consumption. Our rules need to adapt quickly.
The policy filters that we suggest may first appear as all too simple:
- “What impediments to the creation of Canadian content must be removed?
- “What measures must be taken to encourage the most compelling Canadian creative product?”
This is the lens through which we ought to filter our policy considerations of digital media. In our view that lens must be paramount for Canadian creative products to succeed in the digital age.
Of interest is “Australian Government releases Convergence Report” http://t.co/p1aMJpVm
http://www.copyright.org.au/news-and-policy/details/id/2064/
Some principles cited:
- “Citizens and organizations should be able to communicate freely and, where regulation is required, it should be the minimum necessary to achieve a clear public purpose.”
Of greatest interest is that the Report would make size of enterprise the criteria for regulation:
- “The Review recommends that these significant media enterprises be defined as ‘content service enterprises’ and be subject to regulation. Organizations would be defined as content service enterprises if they:
- have control over the professional content they deliver
- have a large number of Australian users of that content
- have a high level of revenue derived from supplying that professional content to Australians.”
- “The threshold for users and revenue would be set at a high level to exclude small and emerging content providers. This proposed framework is only concerned with professional content. For example it would include ‘television-like’ services and newspaper content but exclude social media and other user-generated content. As a guide, modeling conducted for the Review indicates that currently around 15 media operators would be classified as content service enterprises.4 This modeling suggests that currently only existing broadcasters and the larger newspaper publishers would qualify as content service enterprises.”
The Report proposes to regulate media ownership; content standards across all platforms; and production and distribution of Australian and local content.
On the other hand, regulators do love to regulate: “F.C.C. Weighs Treating Video Sites Like Cable Companies” – NYTimes.com
- The hot button threat “Aereo”:
- “ Two digital rights groups have come to the defense of a service that uses antennae to broadcast television over the Internet, as major networks sue to take the start-up down.
- ”This case is in fact about the right of individuals – Aereo’s customers and ultimately all residents of the U.S. – to watch free local broadcast television with the technology of their choosing,” according to the amicus brief filed the Electronic Frontier Foundation and Public Knowledge, nonprofits dedicated to preserving civil liberties in a digital age.
- The brief urges a Manhattan federal judge to reject calls for a preliminary injunction against Aereo Inc. in the copyright case filed by Fox Television Stations, Public Broadcasting Service and other media giants.
- ”Plaintiffs prefer a public performance right that limits viewers to narrow, outdated, and technology-specific means of accessing the public airwaves,” the brief states, adding that litigation damages both individual rights and free-market innovation.
- ”Cases that test the application of statutory copyright law to new technologies often involve startup companies, like Aereo, whose businesses challenge incumbent industries,” according to the brief.
- The nonprofits add that “such competitive challenges are not a violation of any law, and in fact are generally events to be encouraged where, as here, innovation and competition go hand in hand.” Aereo’s technology would allow viewers to rent a small antenna located at the company’s facility and then view free television signals that the antenna picks up and sends to their homes over the Internet. But the networks say this constitutes an illegal free public performance of their copyrighted material. : Electronic rights defenders hope to distance the service from copyright law, which characterizes a broadcast as a private performance if each user accesses its own antennae and signal. : ”The origin of each transmission is a lawful, user-made copy taken from the public airwaves, a source to which the user would have lawful access by set-top antenna, [or] roof antenna,” the brief states (emphasis in original). : Aereo’s innovation “is part of the evolving public perception of what it means to ‘watch TV,’” and part of a general trend of allowing viewers to watch TV through an Internet connection, it adds.”
- “Copyright and the Fight to Bring TV to Laptops” – Lucile Scott –May 25,2012
- “ABC Tells Judge Aereo Violates Copyrights, Should Be Shut” – Businessweek